Caseload Means a Break for Pot Dealers : Justice: Shortage of federal judges in San Diego prompts U.S. attorney’s office to go easy on first-time offenders involved in marijuana trafficking.

Seeking to ease the load on San Diego’s overworked federal judges, the U.S. attorney’s office has decided to pursue only misdemeanor charges against first-time offenders accused of dealing as much as 100 pounds of marijuana, judges and lawyers said.

The policy, which has been in place for several weeks, allows an accused offender who could face felony charges to plead guilty to a misdemeanor for toting up to 100 pounds of marijuana, judges and lawyers said. The arrangement replaced an informal office guideline that had put the cutoff for a plea bargain at 50 pounds.

For the U.S. District Court in San Diego, now shy three of eight full-time judges, the deals save the time and trouble of a trial.

The change is particularly significant for the San Diego court, which sees a remarkably high number of marijuana cases each year because it handles cases from the U.S.-Mexico border and because the local U.S. attorney’s office aggressively prosecutes so-called “border busts,” or drug-related arrests made at the border.

A felony bust could bring years in prison and hundreds of thousands of dollars in fines, but a misdemeanor conviction means, at most, a year behind bars and a lesser fine. Because the consequences of a misdemeanor conviction are much less serious, the offer to cut a case from a felony to a misdemeanor often leads quickly to a bargain, averting a trial, lawyers said.

And, federal magistrates, not U.S. district judges, handle all misdemeanor cases--a crucial concern for the court’s five remaining full-time judges.

Though precise figures are not yet available, the revamped policy “definitely” means less work already for the judges, Chief U.S. District Judge Gordon Thompson Jr. said last week. “I think there’s been a difference already, and I think we’re sure to see a lot less when it comes to trials on the minor matters,” he said.

The reworked federal policy also makes even more dramatic the discrepancy with the way county prosecutors handle marijuana possession cases. According to San Diego County district attorney’s office guidelines in place since February, 1989, an arrest for 1 pound with intent to distribute can lead to felony charges.

There’s an irony to the new federal guideline, too. The U.S. attorney’s office in San Diego was the one that began the “zero-tolerance” plan, which evolved--for a few months in 1988--into a nationwide scheme under which federal agencies seized yachts, fishing boats and research ships after finding the tiniest amounts of marijuana aboard.

The new 100-pound policy is the apparent product of a circumstance unique in California to the San Diego court--the international border, and the low-level smuggling cases that border busts produce.

Federal prosecutors in Los Angeles and San Francisco are unlikely to take on marijuana cases involving anything less than several hundred or thousands of pounds of pot, prosecutors and defense attorneys in those two cities said. Instead, cases involving smaller amounts of marijuana are referred to state authorities, lawyers said.

Federal prosecutors in San Diego declined to confirm or deny the policy change.

“We don’t like to comment on our prosecution policies,” U.S. Atty. William Braniff said. “We certainly don’t want to advise the other side how we’re going to treat them.”

But Thompson, other judges and several lawyers confirmed the new guidelines.

“I don’t know that it’s in our best interests to publicize it,” said Steve Hubachek, an attorney with Federal Defenders of San Diego Inc., the 17-attorney agency that represents poor people charged with a crime in the local federal court, referring to the change. Defense lawyers worry that publicity will prompt prosecutors to return to the 50-pound limit, he said.

But, Hubachek added about the change: “It’s the truth.”

For defense attorneys, the deals do have a downside, Hubachek said. For one, the bargains are not available to anyone with a criminal record, he said.

Once the deal is struck, prosecutors almost always recommend that a judge impose a 12-month sentence, the maximum term for a misdemeanor, he said.

Prosecutors also seek to preclude as a term of the bargain the eligibility available to first-time offenders for a special sentence, a year’s probation and a clean record if the year passes without more charges.

But he said the deals usually prove attractive.

“These persons are mules,” Hubachek said, meaning at the bottom end of the distribution chain. “When they’re busted, the amount (of the marijuana) controls what their sentence is,” because the law allows judges to instruct juries that large amounts indicate an intent to distribute. “Giving these people misdemeanors is more just than otherwise.”

The change apparently evolved after a meeting Dec. 7 with Thompson, Braniff, Brannigan, Dist. Atty. Edwin L. Miller Jr. and Louis Boyle, a former San Diego Superior Court judge who now serves as a top deputy to Miller.

At that meeting, Thompson said Wednesday, he asked federal prosecutors “if they wouldn’t mind being a little more selective in their indictments,” meaning felony cases, because of the case crunch facing the five full-time judges.

Until last summer, the San Diego court had a full complement of judges. But last July, U.S. District Judge William B. Enright took senior, or part-time, status upon reaching age 65. Then, on Dec. 31, U.S. District Judge J. Lawrence Irving resigned to protest rigid new federal sentencing guidelines.

At the beginning of December, Congress awarded the San Diego court another full-time judgeship, expanding the count of full-time slots from seven to eight.

San Diego lawyers Marilyn Huff and Jim McIntyre are believed to be in line for two of the three open positions. But neither is expected to be confirmed by Congress for months, and no candidate has even been suggested for the third opening, Thompson said.

Criminal cases make up about 85% of the load carried by each San Diego federal judge, Thompson said. Although the number of judges is down, statistics indicate that the number of criminal cases in the court is up sharply--and so is the number of marijuana cases.

In fiscal 1990, which ended last June 30, according to a study published by the Administrative Office of the Courts in Washington, prosecutors brought 1,699 new criminal cases in the San Diego federal court. That was up 18.9% from fiscal 1989, when 1,429 cases were filed.

Fiscal 1990 brought 482 marijuana cases into the San Diego federal court, according to the study. That was up 61% from fiscal 1989, when there were 300 marijuana cases, the study indicates.

“I think you’ve got to understand that it’s very politically advantageous to say, ‘We have a war on drugs,’ and see Congress appropriate X number of dollars for arresting bad guys and double or triple the U.S. attorney’s office, which has happened,” Thompson said. The number of prosecutors has jumped from about 35 in 1980 to about 80.

“But it’s like a funnel upside down,” he said, because all cases have to go “through that narrow hole at the top,” the size of which translates to the number of judges.

“And you simply can’t expect judges to absorb the cases coming through the court when you’ve beefed up every other agency in the country, except for the judges,” Thompson said.

Thompson said that he stressed at the Dec. 7 meeting that prosecutors should view any changes they made as temporary.

“Once we get our full complement” of judges, he said, “I don’t see us as being in trouble at all. I think we can handle the load.”